Iain McLean and Scot Peterson have written at Politics in Spires about Same-Sex Civil Marriage and the Established Religious Lobby: Providing the Government with Good Information?
On Tuesday 12 June, two days before the end of the consultation by the Government Equalities Office (GEO) on same-sex civil marriage, the Church of England submitted an unsigned response. The response contains a number of arguments, which we feel are deeply flawed or simply inaccurate:
- Same-sex civil marriage violates the fundamental principle of marriage: complementarity, which arises from the difference between the sexes. If this argument does not depend upon the importance of procreation, and it cannot, then the argument is circular.
- Legislation on civil marriage will impact religious marriage because the institution of marriage is one and the same for both. But one of the foremost Christian apologists in the Church of England has argued that they should be different, and the Church of England has fought successfully to maintain the distinction between the two.
- The Church of England’s bishops have supported civil partnership policy in the UK. In fact, they have not.
- European law may force churches to perform same-sex marriages if the government does so. In fact, the authority that the church relies on leads to exactly the opposite conclusion.
- Nothing is gained by giving same-sex partners the option of a civil marriage when they already have civil partnership. This argument is wrong, because (a) important benefits obtain in marriage, which do not in civil partnerships; and (b) separate is not equal.
On Thursday 14 June, the consultation deadline, seven Oxford academics, including the authors, Professors Leslie Green (Philosophy of Law) and Diarmaid MacCulloch (History of the Church); the Rev Canon Dr Judith Maltby, Dr Adrian Kelly, and Will Jones, M.Phil., submitted a response to the church’s position, addressing each of these arguments in turn…
One only hopes that the British government panel collating all the responses to the proposed legislation for Same-Sex Marriage will pay more attention to this detailed response, than to the un-named ‘official’ response by the ‘Church of England’
The arguments put forward by the official response are obviously full of holes, and hardly acceptable.
There was a time when England’s greatest academics were churchmen. Now, the Archbishops of Canterbury and York put out a paper on one of their core subjects which is, as the Church Times put it “tendentious and poorly argued”. Leaving aside the conclusions of the church paper, it demonstrated an ignorance of history and law, and a childish level of argument, which are impressively addressed by this response from Oxford academics from a range of disciplines which would once have been well within the competence of the Bench of Bishops. If the Church of England is to fulfil its mission… Read more »
‘that differential treatment of the applicants’ rights fell within the ‘margin of appreciation’ afforded to member states.’ This is crucial factor in assessing the Church of England’s response. The reason for the European Court respecting the margin of appreciation is expressed clearly by Judge Malinverni in the same case: ‘Article 12 is inapplicable to persons of the same sex. Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union deliberately omitted any reference to men and women, since it provides that “the right to marry and to found a family shall… Read more »
Complementarity is in the relation and mission of the couple, rather than their individual capacities considered in isolation. Complementarity doesn’t restrict how they function as individuals while married in other areas of their lives. The writers of this response have completely missed this. The focus of the complementarity is on how they might exercise the full range of functions with respect to each other, in this case, as a married couple. The same is the true for membership of the Body of Christ ( 1 Cor. 12) As one learned priest describe the binary capacity required by the UK law… Read more »
Thank you, Oxford!! I hope bishops are held to account for their deadful submission by their dioceses – here is just the information people need in order to press them hard over the church’s attitude to what is coming. What, for example, is going to be the attitude of dioceses and churches to members who choose to avail themselves of the opportunity and the legal right to have a civil marriage? And of clergy ditto? Will the clergy be disciplined, and they and the laity excommunicated for acknowledging and embracing a vision of marriage that the church leadership says will… Read more »
The analysis of the Oxford dons is a devastating repudiation of an incredibly shoddy piece of work. The only thing I would add is a reminder, on the legal side, that four years ago, the California Supreme Court found that “equal” rights but separate names for opposite sex couples (“marriages”) and same-sex couples (“domestic partnership,” “civil partnership,” or “civil union”) creates inherent inequality: “[A]ffording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have… Read more »
Excellent and just to say that as fellow American I am quite proud to see Judith Maltby’s name and to imagine that she facilitated references to USA civil rights decisions. As someone else has already noted, the C-of-E response to the government proposal appeared on the 45th anniversary of Loving vs Virginia – a bit of heavenly irony.
Many thanks to the “wise seven”
“Complementarity is in the relation and mission of the couple, rather than their individual capacities considered in isolation.” But shall complementarity be equated to “Tab A in Slot B”? Cell differentiation into X or Y? No one has to argue to me that “Diversity is Beautiful” (there’s a troll around the Episcopal blogosphere who’s always taunting “Celebrate Your Diversity”: well, I do!). Reducing complementary diversity into a fetishization of gonads, gametes or reproductive organs is rather trading God’s Gifts (ALL of them) for a golden calf. No thanks. [And FYI, DavidS, there’s no “mission of the couple”, that a same-sex… Read more »
‘And FYI, DavidS, there’s no “mission of the couple”, that a same-sex couple can’t do just as well. Simple observation.’ Symbolic diversity is more like a simplistic observation, JCF. Two partners of any sexual orientation and each fertile, right? So try building kinship, directly from any such relationship, a real family, a network of blood ties (rather than a so-called ‘de facto’ family) directly from homosexual partnering. A normative part of a couple’s mission is to raise their own offspring as part of raising the next generation. Not every couple, mind you, but two partners, each fertile, should be able… Read more »
Specifically to DavidS, I disagree on the margin of appreciation which I don’t think you’ve understood. The margin of appreciation would surely remain but, when one thinks that ceremonies carried out by religions receive a higher level of protection than other more peripheral ‘manifestations of religion’ and that everywhere in the world not just Europe there is a freedom for religions to determine who to marry and who not to, within certain limits. David’s argument is, on the face of it curious, ie that a state that allows same sex marriage by the state as well as as those religions… Read more »
Pertinent questions from JeremyP, but sadly I suspect no-one has thought ahead at all. The whole thing makes me think of the desperate rearguard fight against permitting a man to marry his deceased wife’s sister, which took from 1841 to 1907, based in specious exegesis of another couple of verses from Leviticus, which was flatly contradicted in verses from Deuteronomy anyway. All of which was backed up by the same flesh-creeping hypothesising about the moral collapse of the universe as we are hearing today. The bishops made themselves a laughing-stock for 66 years. Please God they won’t be so collectively… Read more »
David S:
Why this incredible obsession with blood kinship? Where in the theology of Christian marriage do you find this? Where in common law do you find it? I don’t know about the law in the UK, but in most states in the US, adopted children are just as legitimate, just as much a part of the family, as “natural” children. Adopted children inherit in cases of intestate death, along with their natural siblings (if any), for example. And in most states, sexual relations between adopted siblings or between an adopted child and his/her adoptive parent are considered incest.
Craig: Let’s agree that the McLean and Peterson response itself cites Adam Wagner’s Guardian piece that gave the legal challenge a reasonable chance of success under article 9 of the Charter of Fundamental Rights of the European Union: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’ Wagner said: ‘It may be that once a state decides to implement gay marriage, the court will be less cautious in ruling on how exactly the rules are implemented. But, a claimant would still face very… Read more »
David: you seem worried about a case that couldn’t be brought, let alone have amicae curiae written. I can’t speak for ilga but cases can only be brought if they have some substance. A case cannot be brought under the CFR in any case (art 9 in any case reserves the matter to state legislation – as also does ECtHR Schalk and Kopf case; and the CFR is declaratory and not justiciable). You will recall of course that Schalk and Kopf is exactly about treating same and opposite sex couples differently and found in favour of Austria that s state… Read more »
I want to echo Pat’s question, DavidS.
Many years ago, as I was coming to an adult faith profession in the Episcopal Church I had been raised in, a priest left a last impression. In Christ, we were (he said) God’s children by adoption. “And in Roman law, a natural-born child could be disowned, but an *adopted* child, NEVER!”
Through the years, I’ve found that idea very comforting. 🙂
Craig: If Wagner, who stands in support of gay marrige, is wrong about a reasonable chance of success, McLean and Peterson are wrong to cite it in favour of their argument: ‘One prominent legal commentator has argued that the case against the church, to force it to perform same-sex religious marriage, is ‘reasonable’’ I’m just demonstrating that what you claim is conclusively impossible is given by gay marriage proponents a reasonable chance of success. Argue with those of your own side, including Wagner, McLean and Peterson, as to why they do so. Highlight their erroneous understanding of law. Or is… Read more »
I suggest that a consensus of the faithful is evolving. It may well be, eventually, in favour of same sex marriage. Until a consensus has evolved, however, I think all those participating in discussion should treat both the pro and con arguments seriously, and politely.
The same applies to what I would call “the consensus of the nation”. It is alarming that the Government should decide to introduce same sex marriage before there has been a long period of discussion and reflection – they have treated the matter as if it were a minor legislative change.
“The same applies to what I would call “the consensus of the nation”. It is alarming that the Government should decide to introduce same sex marriage before there has been a long period of discussion and reflection – they have treated the matter as if it were a minor legislative change.” John Ross Martyn. Racial and gender equality legislation was introduced in the UK in 1975 at a time when women were still referred to as ‘dolly birds’, were asked in job interviews when they would be leaving to have a baby and were paid lower wages than men for… Read more »
Wagner’s article is not well written. If I read it aright it says that the current government proposals could be vulnerable to a challenge on the grounds of preventing (in a blanket ban) religious groups from performing such marriages where they wish to do so. Were such a challenge to be made I think the chances are indeed reasonable though not in any way certain due to the Schalk v Austria case which gives a wide degree of discretion to member states. There is though no chance of a case taken under the CFR (whatever anyone says) and the concept… Read more »
Craig:
Concerning your view that Article 9 protections are iron-clad exemptions, the existing case law supports considerations that are a lot more involved than you claim.
http://www.coe.int/t/dghl/cooperation/capacitybuilding/Source/documentation/hb09_rightfreedom_en.pdf
“It may well be, eventually, in favour of same sex marriage. Until a consensus has evolved, however, I think all those participating in discussion should treat both the pro and con arguments seriously, and politely.” Re “all those participating in discussion”: you know the saying about Ham&Eggs, JRM? “The chicken is involved, but the pig is committed!” And so with the “discussion” about same-sex marriage. While straight people may be involved, gay people are (or WANT to be!) committed. It is neither right, nor realistic, to expect the latter to be “polite” about those who would hold them to (at… Read more »
Niceness is the enemy of fairness.
I second JCF’s comment about ham and eggs.
The latest case from the ECHR is Schalk v Austria which sort of seals the matter really. One can try to complicate matters but Schalk v Austria is really very clear.
The Church of England is engaged in some very dubious old fashioned scare mongering that does not reflect the known facts.
Schalk vs. Austria is about two civil partners petitioning the ECHR to be granted access to marriage, whereas the CofE response deals with the requirement to legislate equally, if the right to marry is extended to include same-sex couples. All Schalk vs. Austria established was that it is currently left to each member state to decide whether to legislate for same-sex marriage. If they do, they must implement it in a non-discriminatory way (Article 14). For example, when Reformed churches complained of exclusion from civil recognition of their religious marriages, Croatia claimed that there was no obligation under the European… Read more »
“If it does prohibit gays from having a parish wedding, the State must demonstrate that there is an objective and justifiable reason for preventing parish priests (who have a statutory duty to marry any eligible parish residents who request a wedding) from solemnising the marriage of two people who fulfil the revised criteria for eligibility to marry, but ‘just happen to be gay’.” This, of course, is a consequence of having an established church. Disestablish the CoE and the whole problem goes away, as it would not be the government prohibiting same-sex church weddings, but each individual church deciding on… Read more »
So, repeal the Coronation Oath Act and the Act of Settlement 1700, then terminate the Accession Declaration, Royal Assent to the Church of England Canons and the Crown Nominations Commission and the Ecclesiastical Commission. Excise Article 37 from the 39 Articles,
Oh, and while we’re at it, remove the Queen as the Supreme Governor of the CofE with a stroke of the legislative pen.
A very unlikely and unpopular manifesto promise.
David Shepherd, your comments here are sometimes reminders of the priority of the Law over Gospel. Many of us in the ministry of the Church have been striving most of our ministry with trying to encourage the reverse situation – in places where Law is so obviously counteractive to the Gospel.
And as for waiting for consensus on issues of combating homophobia and misogyny in the Church;
again it is a case of justice delayed being justice denied – antithetical to the Gospel.
Ron, Given that we don’t live in a theocracy, the law of the land (which we discuss here) differs considerably from the Law of God. The Gospel does not revise or contradict the Law of God. It does empower us to escape its ultimate penalty (justification) and to identify and apply those aspects of the Law that we can internalise (sanctification): ‘I will put my laws in their minds and write them on their hearts. I will be their God, and they will be my people.’ (Heb. 8:10) As you’re aware, that life-long process of sanctification involves faith in Christ.… Read more »